RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2415-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AARON T. BAILEY,
Defendant-Appellant. _______________________
Argued May 13, 2025 – Decided June 5, 2025
Before Judges Gooden Brown and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 22-06-0590.
Rachel A. Neckes, Assistant Deputy Public Defender argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Rachel A. Neckes, of counsel and on the briefs).
Jaimee M. Chasmer, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; Jaimee M. Chasmer, of counsel and on the brief; Edward F. Ray, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Aaron Bailey was convicted of second-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(13); fourth-degree criminal
mischief, N.J.S.A. 2C:17-3(a)(1); and fourth-degree stalking, N.J.S.A. 2C:12-
10. Defendant was subsequently sentenced to an aggregate seven-year term with
an eighty-five percent parole disqualifier under the No Early Release Act
("NERA"), N.J.S.A. 2C:43-7.2.
The charges stemmed from a brief but tumultuous relationship between
defendant and S.G. 1 The alleged criminal conduct occurred between February
and May 2022 and involved S.G. receiving a restraining order under the
Prevention of Domestic Violence Act ("PVDA"). The State alleged that
defendant: (1) strangled S.G. to the point of unconsciousness on February 23;
(2) slashed S.G.'s tires on April 4 after S.G. broke up with him; (3) violated a
restraining order; and (4) stalked S.G. by engaging in a course of conduct, while
having a restraining order, that was designed to place her in fear.
On appeal, defendant raises the following points for our consideration:
1 We use initials for the parties to protect the identity of the individual who procured the domestic violence restraining order. See N.J.S.A. 2C:25-33; R. 1:38-3(d)(9). A-2415-22 2 POINT I:
[DEFENDANT]'S CONVICTION FOR AGGRAVATED ASSAULT MUST BE REVERSED BECAUSE THE COURT'S INSTRUCTIONS DID NOT REQUIRE THE JURY TO FIND THAT HE COMMITTED THE REQUISITE ACT AND ERRONEOUSLY DEFINED THE REQUIRED MENTAL STATE FOR ATTEMPT. (Not Raised Below).
POINT II:
[DEFENDANT]'S CONVICTION MUST BE REVERSED BECAUSE THE COURT EXCLUDED EXTRINSIC EVIDENCE RELEVANT TO IMPEACHMENT AND TO REBUTTING THE STATE'S CHARGES.
POINT III:
THE COURT'S FAILURE TO SEVER AND SANITIZE COUNTS THREE AND FOUR PRIOR TO TRIAL AND ITS ERRONEOUS JOINDER OF COUNTS ONE AND TWO VIOLATED [DEFENDANT]'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
POINT IV:
THE CUMULATIVE EFFECT OF THE ERRORS DENIED [DEFENDANT] A FAIR TRIAL AND REQUIRES REVERSAL. (Not Raised Below).
Having reviewed the record, the parties' arguments, and the applicable legal
principles, we reverse the convictions and remand for a new trial.
A-2415-22 3 I.
We glean these facts from the trial record. At trial, S.G. testified to dating
defendant for three months beginning in January 2022. Specifically, S.G.
recounted that on the evening of February 23, 2022, she drove her car to
defendant's home after a night out with friends. Defendant, who had a bottle of
liquor in his hand, jumped into the passenger seat as S.G. parked and began
angrily questioning S.G. if she had been with any men. Defendant then slapped
S.G.'s face and grabbed her hair while shoving her head towards the center
console, holding her head there, and screaming over her. During this encounter,
S.G. managed to secretly record two videos capturing audio of the incident that
were played for the jury. Defendant can be heard threatening S.G. and
acknowledged that he was hurting her.
Fearing for her safety if she left, S.G. joined defendant in his basement
apartment, where defendant soon became angry again. S.G. told defendant that
she wanted to leave, which angered defendant who told her she could not leave.
S.G. recorded a third video which captured some visual of the next assault in
which defendant bear hugged and punched S.G. while repeatedly telling or
challenging her to "[g]o home then." Eventually, defendant and S.G. got into
bed and defendant demanded to see her phone. Defendant rolled on top of S.G.
A-2415-22 4 to try to get her phone, which was on the floor next to the bed, and then tried to
unlock it with facial recognition by forcing her head towards the phone. S.G.
tried to use "Siri" to call 9-1-1, but defendant cancelled the call before it
connected.
Following the attempted 9-1-1 call, a fight ensued in which defendant
choked S.G. until she lost consciousness and passed out. When S.G. woke up,
defendant's mood had changed, and he cuddled her and told her that he loved
her. S.G. testified that she had a bruise on her neck, lost her voice, and that
defendant would not let her leave his side for the next three days. S.G. stated
that she was afraid to leave or deviate from his instructions because he had
threatened her children and friends if she did not comply.
Defendant and S.G. broke up for good a few days later, when S.G. went
to defendant's apartment to pick up her belongings at a time she believed he
would be at work. Defendant, however, was home that day, and the matter
turned physical and ended when S.G. left with a few items. S.G. stopped
communicating with defendant and blocked his phone number and social media
accounts and then took her children away from home for a few days out of fear
for their safety.
A-2415-22 5 S.G. also testified that on April 4, 2022, at about 3:00 p.m., she heard a
car screech and looked outside from her second-floor window. S.G. saw a man
leaving a gray sedan with a handicap sticker, wearing a full-faced orange ski
mask with dark pants, dark long sleeves, and a knife approaching her Ford
Explorer parked in her driveway. S.G. recounted that she called out to him, but
the man laughed and slashed the passenger-side tires with a knife before running
back to the sedan and driving off. S.G. identified defendant as the tire-slasher
based on his laugh, body language, and stature. Her children arrived home from
school a few minutes later and after S.G. quickly brought them inside, she called
the police to report the incident.
Midland Park Police Officer Michael Divite testified that on April 4, 2022,
he was on routine patrol. Around 3:30 p.m., he received "a call for service for
a party with a possible weapon" at S.G.'s address. He also received a description
of the gray sedan. Officer Divite canvassed the area for the car, while another
officer responded immediately to S.G.'s home. Officer Divite arrived at S.G.'s
house about "two minutes" later. The officers spoke with S.G., who reported
what happened. Officer Divite observed punctures in both passenger-side tires
on S.G.'s truck. After twenty to thirty minutes, Officer Divite transported S.G.
to the police station. S.G. provided a written statement, including details of the
A-2415-22 6 February 23 incident. S.G. also reported to police that she was afraid of
defendant because he was "abusive" and had threatened her "with going after
[her] kids [and] friends." He had "threatened to kill [her]" and had "threatened
[her] with revenge porn."
While at the station, around 4:14 p.m., S.G. received a notification on her
phone that defendant had sent her a message on TikTok. However, the message
was gone when S.G. tried to open it. Officer Divite transported S.G. home after
she completed her paperwork.
Separately, defendant made a call to Paramus Police that same afternoon.
Defendant contacted the police at 3:11 p.m. about "threatening text messages"
that he had received from an unknown phone number at 7:49 a.m. that day.
Paramus Police Officer Henry Ramm testified that he was dispatched to
defendant's Paramus apartment at 3:27 p.m. on April 4. Defendant did not tell
Officer Ramm who could have sent him the message. He reported that the
number was out of service when he tried to call back. Officer Ramm testified
that he was with defendant until about 3:40 to 3:50 p.m.
Shortly thereafter, Paramus Police returned to defendant's apartment in
relation to the investigation of the tire slashing. Paramus Police Officer
Jonathan Henderson testified that, on April 4, he received a call "a little after
A-2415-22 7 4:00 p.m." from Midland Park Police requesting that he "check" defendant's
house to "see if [defendant] was there." Officer Henderson arrived around 4:17
p.m. and attempted to "make contact" with defendant, but defendant was not
there. By 8:30 p.m., Paramus Police were able to locate and arrest defendant at
his apartment.
Alexander Rivera, a manager at ETD Discount Tire, testified that on April
5, 2022, S.G. ordered replacement tires. The cost of replacing the two damaged
tires was $540.99. S.G. also testified that the cost of replacing the tires was
"[j]ust over [$]500."
At trial the parties stipulated that the distance between defendant's and
S.G.'s residences was "8.7 miles using New Jersey 17 South, 9.2 miles using
New Jersey 208 South and 7.3 miles via Century Road."
S.G. also reported defendant's social media posts to the police, including
a post made by defendant in which, despite being blocked by S.G., he reposted
a screenshot of one of her posts. Midland Park Police Officer Michael Powderly
testified that S.G. reported the social media posts to the police. Officer
Powderly stated that he referred the matter to the Bergen County Sheriff's
Department.
A-2415-22 8 Jeffery Ramirez from the Bergen County Sheriff's Department testified
that upon report of the social media posts, he located a phone call from May 6,
2022, between defendant and Shelby Bailey. On the call, defendant instructed
Shelby to take screenshots of S.G.'s posts, post them to his own Facebook and
write "how this bi*** accused me of going and flatting her tires and all this
bulls**t and accused me of choking her out . . . ." He told the woman to "sell
her out . . . but don't contact her directly . . . . Because . . . you can get in trouble
for that." The jury was not told that the conversation was taken from a recorded
jail call between defendant and his estranged wife.
On June 28, 2022, a grand jury issued an indictment against defendant,
charging him with: second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(13)
("Count One"); fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) ("Count
Two"); fourth-degree contempt, N.J.S.A. 2C:29-9(b) ("Count Three"); and
third-degree stalking, N.J.S.A. 2C:12-10(c) ("Count Four"). Stalking was
elevated from a fourth-degree to a third-degree offense because the alleged
criminal conduct occurred while defendant was subject to a domestic violence
restraining order.
On January 9, 2023, defendant filed a motion to sever the counts of his
indictment seeking to try counts one and two independently from each other,
A-2415-22 9 followed by a third trial on counts three and four. When commencing voir dire
of each of the three jury panels on January 10, 11, and 12, the court informed
the panels of all four charges in the indictment against defendant. Following
jury selection, the court issued an order severing count three and sanitizing count
four (by deleting reference that the alleged stalking was in violation of an
existing court order) but denied defendant's requests for severance of counts one
and two.
On January 18, 2023, testimony commenced on counts one, two, and the
sanitized count four. On the morning before the State began its case-in-chief,
defense counsel sent the State and court a new list of potential exhibits,
including a video recovered from defendant's phone. The video was allegedly
recorded by defendant almost two weeks after the strangulation incident and two
weeks before their final break up, and is of an interaction between himself and
S.G. The video is filmed from the point of view of defendant and begins with
him standing outside his apartment. Defendant walks through the open, exterior
door to the basement level of his apartment and repeatedly states "I've asked you
to leave" to S.G. S.G. is down a hallway and goes in and out of view throughout
the video. She responds "I'm f***ing getting my s**t" and "keep your hands off
of me." During the argument, defendant, who walks inside and outside of his
A-2415-22 10 apartment says "get your stuff and leave" to which S.G. responds, "I'm trying to
leave, but you wouldn't let me." S.G. also asks, "what the f**k is wrong with
you" and tells defendant to call the police. S.G. can be seen down the hallway
on her phone. Defendant keeps repeating "please leave" and says "you said you
were getting your stuff . . . ok then please do that" while backing out of the door
to head back outside. S.G. follows defendant and can be seen standing near the
doorway looking at her phone and attempting to show defendant whatever is on
it. Defendant, standing outside, states that he does not care about any of this
and says that S.G. attacked him before he began filming. The video then ends.
Defense counsel sought to impeach S.G. with the video during cross-
examination. The court first stated that it would allow defense counsel to use
the video for impeachment but, upon the State's motion for reconsideration,
found that the video contained inadmissible hearsay and that counsel could only
impeach the witness with a transcript of her own statements from the video. The
court determined there was no excuse for the late turnover of the video and
denied defendant's additional requests to introduce the video and denied his
motion for reconsideration.
A-2415-22 11 On February 1, the jury convicted defendant of all charges. The State
subsequently dismissed the severed count three and did not seek an enhanced
penalty on the sanitized count four.
The court sentenced defendant on March 3, 2023, and imposed an
aggregate seven-year term with an eighty-five percent parole disqualifier as
follows: a seven-year NERA sentence for second-degree aggravated assault; a
concurrent one-year sentence for fourth-degree criminal mischief; and a
concurrent one-year sentence for fourth-degree stalking. The judge also ordered
defendant to pay related fines and restitution.
II.
We now address the arguments raised by defendant, reordering and
combining them in some respects for ease of discussion.
A.
Defendant argues that the court's untimely order in severing the contempt
charge and sanitizing the stalking charge resulted in improper disclosure of the
restraining order to the jury. Defendant contends this created an undue prejudice
that could not be overcome by an untimely and non-specific instruction to the
jury.
A-2415-22 12 Rule 3:15-1 governs the permissible and mandatory joinder of charges and
defendants in criminal cases. "Joinder is permitted when two or more offenses
'are of the same or similar character or are based on . . . [two] or more acts or
transactions connected together or constituting parts of a common scheme or
plan.'" State v. Morton, 155 N.J. 383, 451 (1998) (first alteration in original)
(quoting R. 3:7-6). Mandatory joinder is required when multiple criminal
offenses charged are "based on the same conduct or aris[e] from the same
episode, if such offenses are known to the appropriate prosecuting officer at the
time of the commencement of the first trial and are within the jurisdiction and
venue of a single court." R. 3:15–1(b).
Notwithstanding the preference for joinder, Rule 3:15-2(b) provides for
relief from prejudicial joinder in criminal trials. See State v. Chenique-Puey,
145 N.J. 334, 341 (1996) (decision whether to sever an indictment rests in sound
discretion of trial court); State v. Weaver, 219 N.J. 131, 149 (2014) (decision to
sever is within the trial court's discretion, and it will be reversed only if it
constitutes an abuse of discretion); State v. Sterling, 215 N.J. 65, 72–73 (2013);
State v. Krivacska, 341 N.J. Super. 1, 37 (App. Div. 2001) (disposition of a
motion for a severance under R. 3:15-2 is addressed to the sound discretion of
the trial court).
A-2415-22 13 In Chenique-Puey, our Supreme Court held that admission of evidence of
a domestic violence restraining order was unduly prejudicial to defendant in a
terroristic threats to kill trial, and therefore severance of the charge was
necessary. 145 N.J. at 337. The Chenique-Puey Court stated that evidence of
the restraining order was inadmissible to prove terroristic threats and that
admission of the order could unduly prejudice the defendant by bolstering the
victim's testimony regarding defendant's prior bad acts because "[a] jury could
interpret the order as a judicial imprimatur on the victim's testimony. The order
creates the inference that if a court found defendant guilty of domestic violence
in a prior proceeding, that defendant is more likely guilty of the present
terroristic-threat charges." Id. at 343. The jury might understand such an order
as a symbol of judicial endorsement of a victim's testimony, making it "highly
damaging" to a defendant's case. State v. Vallejo, 198 N.J. 122, 134 (2009); see
Chenique-Puey, 145 N.J. at 343.
Likewise, in Lozada, in reaching the conclusion that the trial court erred
in failing to sever the charges of stalking and contempt of a restraining order,
we relied on the decision in Chenique-Puey. State v. Lozada, 357 N.J. Super.
468, 470 (App. Div. 2003). We stated that the jury's knowledge of a restraining
order was likely to prejudice defendant's right to a fair trial of whether he is
A-2415-22 14 guilty of stalking pursuant to N.J.S.A. 2C:12-10c. Id. at 472. For this reason,
our courts have been instructed that in trials for stalking to first try the fourth -
degree version of the crime, without reference to a restraining order; then, if the
defendant is convicted, the State may, before the same jury, try the enhanced
third-degree crime and introduce evidence of an existing restraining order to the
jury. Id. at 472-73.
Here, by following Chenique-Puey and Lozada, the court properly
determined that the contempt count (count three) needed to be severed from the
remaining counts and the stalking count (count four) needed to be sanitized so
that it did not mention that "it was in violation of an existing court order
prohibiting such behavior." As such, the jury was tasked with originally
determining if defendant committed aggravated assault, criminal mischief, and
fourth-degree stalking.
However, that is not where our analysis ends as defendant posits that the
court committed reversible error when, during voir dire, it read the original
indictment to the jury panels creating an undue prejudice. This included the
later severed allegations that defendant committed contempt because he was
subject to a restraining order, and that he also was accused of violating the court
order by "stalking." Although defendant had filed the motion for severance
A-2415-22 15 before this was read to the jury panel, defendant did not object to the reading of
the indictment to each of the jury panels.
When a party does not object to an alleged trial error or otherwise properly
preserve the issue for appeal, it may nonetheless be considered by the appellate
court if it meets the plain error standard of Rule 2:10-2. State v. Clark, 251 N.J.
266, 286-87 (2022); State v. Singh, 245 N.J. 1, 13 (2021); State v. Gore, 205
N.J. 363, 383 (2011). This includes when a defendant fails to object to an error
regarding a jury charge. State v. Funderburg, 225 N.J. 66, 79 (2016). "Under
that standard, we disregard any alleged error 'unless it is of such a nature as to
have been clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-
2). "The mere possibility of an unjust result is not enough." Ibid. "In the context
of a jury trial, the possibility must be 'sufficient to raise a reasonable doubt as
to whether the error led the jury to a result it otherwise might not have reached.'"
State v. G.E.P., 243 N.J. 362, 389-90 (2020) (quoting State v. Jordan, 147 N.J.
409, 422 (1997)) "To determine whether an alleged error rises to the level of
plain error, it 'must be evaluated in light of the overall strength of the State 's
case.'" Clark, 251 N.J. at 287 (quoting State v. Sanchez-Medina, 231 N.J. 452,
468 (2018)).
A-2415-22 16 In the present case, we find that it was plain error for the jury to hear about
the restraining order during jury selection. Although the trial court
acknowledged this prejudice, and eventually severed the counts, the damage had
already been done. The implication jurors were left with throughout the trial
was that another court had already found there was domestic violence and
therefore there was an inference that the defendant was more likely to commit
other domestic-violence-related offenses. Chenique-Puey, 145 N.J. at 343.
Moreover, in a case that was focused entirely on credibility, the jurors were left
with the inference that another court had already endorsed the victim's
testimony. These implications were highly prejudicial and were further
compounded because there was not a timely and specific curative jury
instruction.
The State's contention that the court provided a sufficient remedy to
rectify the initial prejudice is without merit. When inadmissible evidence of a
restraining order is presented to a jury, the court must give a curative instruction
"to alleviate potential prejudice to a defendant," or defendant is entitled to
reversal of his or her conviction. Vallejo, 198 N.J. at 135. The instruction,
moreover, must generally "be firm, clear, and accomplished without delay." Id.
A-2415-22 17 at 134; see also State v. Prall, 231 N.J. 567, 586, (2018) (explaining that "a
curative instruction may sometimes be a sufficient remedy").
Here, during the final charge, the trial court stated
When this trial began, I told you about the charges that were contained in the indictment and I also explained that the indictment is not evidence but merely a written document that brings the charges before a jury so that the jury can decide whether the [d]efendant has been proven guilty beyond a reasonable doubt. As the judges of the law, it is my responsibility to review those charges with the attorneys at the end of the case to decide which charges will be submitted to you for deliberation. Sometimes as a matter of law, I may determine that not every charge within the indictment should be submitted to you for deliberations and at other times, as a matter of law, I may determine that certain—certain charges not originally within the indictment should be submitted to you for deliberations. Here, I have ruled that you are to consider the three charges that were presented to you during the course of this trial.
Providing this instruction at that point in the trial did not cure the damage
from the information sitting with the jury throughout the entire trial. This
instruction was also general and fails to mention or even address the restraining
order. Moreover, defendant's agreement that "this was the least prejudicial" way
to deal with the issue, was not a waiver of his right to a fair trial. As such, we
are constrained to vacate the convictions and remand for a new trial on counts
one, two, and sanitized count four.
A-2415-22 18 B.
Because we have found there was a violation of defendant's right to a fair
trial that requires reversal of the convictions, we address defendant's remaining
arguments only to the extent they present issues that may arise on retrial.
i.
Defendant contends that the court committed error when it refused to sever
the aggravated assault charge (count one) from the criminal mischief charge
(count two). We are not persuaded by that argument. Where offenses are
properly joined, "[the] defendant bears the burden of demonstrating prejudice"
to warrant severance. State v. Lado, 275 N.J. Super. 140, 149 (App. Div. 1994).
However, "the potential for prejudice inherent in the mere fact of joinder does
not of itself encompass a sufficient threat to compel a separate trial." State v.
Scioscia, 200 N.J. Super. 28, 42 (App. Div. 1985). Instead, in deciding a
severance motion, the trial court must "weigh the interests of judicial economy
and efficiency against the right of every accused to have the merits of his [or
her] case fairly decided." Id. at 43.
While judicial economy and efficiency are important considerations, the
"key factor in determining whether prejudice exists from joinder of multiple
offenses 'is whether the evidence of [those] other acts would be admissible in
A-2415-22 19 separate trials under [N.J.R.E. 404(b)].'" State v. Krivacska, 341 N.J. Super. 1,
38 (App. Div. 2001) (alterations in original) (quoting State v. Moore, 113 N.J.
239, 274 (1988)). "If the evidence would be admissible at both trials, then the
trial court may consolidate the charges because 'a defendant will not suffer any
more prejudice in a joint trial than he [or she] would in separate trials. '"
Chenique-Puey, 145 N.J. at 341 (quoting State v. Coruzzi, 189 N.J. Super. 273,
299 (App. Div. 1983)).
Counts one, two, and the sanitized version of count four were all linked
because the crimes demonstrated a complete picture of the turbulent relationship
and proved defendant's motive to control S.G. Moreover, defendant makes no
mention of severing the sanitized fourth-degree stalking count which was joined
with the aggravated assault and criminal mischief charges. Therefore, the
conduct making up the aggravated assault and criminal mischief charges is
intrinsic to the stalking count. See State v. Rose, 206 N.J. 141, 180 (2011)
("[E]vidence is intrinsic if it 'directly proves' the charged offense.").
Additionally, each of the counts would be admissible under a Cofield2 analysis.
Thus, defendant's argument for severance is without merit.
2 State v. Cofield, 127 N.J. 328 (1992). A-2415-22 20 ii.
Next, defendant posits the court's jury charge, for aggravated assault by
strangulation of a victim of domestic violence was deficient because: (1) the
trial court did not instruct the jury that it must find appellant committed the act
of strangulation; and (2) the trial court provided the wrong mens rea to the jury.
We need not examine these contentions other than to highlight that at the time
of the trial no model jury charge existed for N.J.S.A. 2C:12-1(b)(13), but since
then one has been approved.3 On retrial the model jury charge should be read,
as it alleviates the concerns defendant raises on appeal.
iii.
Last, defendant alleges the court abused its discretion in only allowing
him to use a transcript of the encounter with the victim that was recorded on his
cell phone.
Our review of a court's discovery order is governed by the abuse of
discretion standard. State v. Garcia, 245 N.J. 412, 430 (2021); State ex rel. A.B.,
219 N.J. 542, 554 (2014). "[A]ppellate courts 'generally defer to a trial court's
disposition of discovery matters unless the court has abused its discretion or its
3 Model Jury Charges (Criminal)¸ "Aggravated Assault-Strangulation of A Victim of Domestic Violence (N.J.S.A. 2C:12-1(b)(13))" (Apr. Nov.13, 2023). A-2415-22 21 determination is based on a mistaken understanding of the applicable law. '"
State v. Brown, 236 N.J. 497, 521 (2019) (quoting Pomerantz Paper Corp. v.
New Cmty. Corp., 207 N.J. 344, 371 (2011)). "A court abuses its discretion
when its 'decision is "made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis."'" State v.
Chavies, 247 N.J. 245, 257 (2021) (quoting State v. R.Y., 242 N.J. 48, 65 (2020)
(third citation omitted)). A trial court can abuse its discretion "by failing to
consider all relevant factors . . . ." State v. S.N., 231 N.J. 497, 500 (2018). If,
however, the trial court applied the wrong legal standard in deciding to admit or
exclude the evidence, the court's evidentiary decision is reviewed de novo. State
v. Trinidad, 241 N.J. 425, 448 (2020).
The court stated that
It is wholly unreasonable for defendant to ambush the trial causing both the State and the court to deflect a continually changing theory of the need for the video at - at issue. Here, the [c]ourt and the State became aware of the piece of evidence well into the trial in spite of defendant[] having had it earlier.
The court concluded that the fairest outcome for the discovery violation
was to allow the defense to use a transcript of the video for its stated purpose:
impeaching S.G.'s credibility. Given the late disclosure, the trial court did not
abuse its discretion in allowing defense counsel to impeach S.G. using the
A-2415-22 22 transcript, highlight favorable facts from the video during questioning, and
comment on the video's content during closing arguments. However, since the
case is being retried, the prejudice caused by the defendant's failure to timely
disclose the video tape is no longer an issue. The defendant is now permitted to
renew the motion, and both parties will be given the opportunity to present their
arguments as to whether there are any evidentiary impediments to the admission
of the video. As this decision also rests within the trial court's discretion, we
express no opinion on whether the video should be allowed to be played to the
Reversed and remanded for a new trial in accordance with this opinion.
We do not retain jurisdiction.
A-2415-22 23